Silberstein v. Wm. Wicke Co. , 22 N.Y.S. 170 ( 1892 )

GILDERSLEEVE, J.

This action was brought under the statute¹ to recover compensation for the pecuniary injuries resulting to the next of kin from the decedent’s death. The decedent was a boy under the age of three years, and the complaint alleges that his death was caused by the negligence of defendant’s servant. The jury found a verdict for the plaintiff, and assessed the damages at six cents. The plaintiff now moves to set aside the verdict as inadequate. The value of the decedent’s life, when tested by the affections of his parents, and the bitter disappointment his untimely death brought to them, is inestimable. From that standpoint the next of kin sustained a loss that has no equivalent in money. There was, however, no evidence from which the jury could estimate the pecuniary injury except the proof that decedent was an infant of the age of two years and nine months, and in good health. It cannot be said that the proof established, with any degree of certainty, a substantial pecuniary injury. The chances of continued life, success, and ultimate benefit to the next of kin, as deducible from the evidence, were too problematical to require the jury to fix some substantial sum as a pecuniary reward for the injuries. The jury acted within their province. I am reluctant to disturb their verdict, for it is not clear from the evidence that injustice has been done by the award of only nominal damages. The motion for a new trial must be denied.

1 Code Civil Proc. § 1902.